Citation Nr: 0805654
Decision Date: 02/19/08 Archive Date: 03/03/08
DOCKET NO. 06-00 268A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to an increased rating for status-post right knee
anterior cruciate ligament reconstruction, currently
evaluated as 0 percent disabling.
ATTORNEY FOR THE BOARD
C. Fleming, Associate Counsel
INTRODUCTION
The veteran had active military service from November 1989 to
November 1993.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2005 decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri.
FINDING OF FACT
The veteran's service-connected status-post right knee
anterior cruciate ligament reconstruction is manifested by
subjective complaints of pain, swelling, locking, and
popping; objective findings reflect a full range of motion in
the knee from zero to 140 degrees without pain; normal
ligamentous stability; negative McMurray and drawer tests; no
fatigue, incoordination, or instability on repetitive motion
testing; and X-ray findings of normal joint space and no
joint effusion.
CONCLUSION OF LAW
The criteria for a rating greater than 0 percent for status-
post right knee anterior cruciate ligament reconstruction
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38
C.F.R. §§ 3.102, 3.159, 3.321, 3.655, 4.3, 4.7, 4.40, 4.45,
4.59, 4.71, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
At the outset, the Board notes the enactment of the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§
5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007).
To implement the provisions of the law, VA promulgated
regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2007). The VCAA and its implementing regulations
include, upon the submission of a substantially complete
application for benefits, an enhanced duty on the part of VA
to notify a claimant of the information and evidence needed
to substantiate a claim, as well as the duty to notify the
claimant of what evidence will be obtained by whom. 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they
define the obligation of VA with respect to its duty to
assist a claimant in obtaining evidence. 38 U.S.C.A. §
5103A; 38 C.F.R. § 3.159(c).
For an increased-compensation claim, Section § 5103(a)
requires, at a minimum, that the Secretary notify the
claimant that to substantiate a claim, the claimant must
provide, or ask the Secretary to obtain, medical or lay
evidence demonstrating a worsening or increase in severity of
the disability and the effect that worsening has on the
claimant's employment and daily life. Vazquez-Flores v.
Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008).
Further, if the Diagnostic Code under which the claimant is
rated contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant.
Additionally, the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant Diagnostic Codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life. As with
proper notice for an initial disability rating and consistent
with the statutory and regulatory history, the notice must
also provide examples of the types of medical and lay
evidence that the claimant may submit (or ask the Secretary
to obtain) that are relevant to establishing entitlement to
increased compensation-e.g., competent lay statements
describing symptoms, medical and hospitalization records,
medical statements, employer statements, job application
rejections, and any other evidence showing an increase in the
disability or exceptional circumstances relating to the
disability. Vazquez-Flores, slip op. at 5-6.
Here, the Board finds that all notification and development
action needed to render a decision on the claim on appeal has
been accomplished.
In this respect, through November 2004 and March 2006 notice
letters, the RO notified the veteran of the legal criteria
governing his claim and the evidence needed to support his
claim. Thereafter, the veteran was afforded the opportunity
to respond. Hence, the Board finds that the veteran has
received notice of the information and evidence needed to
substantiate his claim and has been afforded ample
opportunity to submit such information and evidence.
The Board also finds that the November 2004 notice letter
satisfies the statutory and regulatory requirement that VA
notify a claimant what evidence, if any, will be obtained by
the claimant and which evidence, if any, will be retrieved by
VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002)
(addressing the duties imposed by 38 U.S.C. § 5103(a) and 38
C.F.R. § 3.159(b)). In the letter, the RO notified the
veteran that VA was required to make reasonable efforts to
obtain medical records, employment records, or records from
other Federal agencies. It requested that the veteran
identify any medical providers from whom he wanted the RO to
obtain and consider evidence. The RO also requested that the
veteran submit evidence in his possession in support of his
claim.
Also regarding VA's notice requirements, the Board notes
that, in the decision of Pelegrini v. Principi, 18 Vet. App.
112 (2004), the United States Court of Appeals for Veterans
Claims (Court) held that proper VCAA notice should notify the
veteran of: (1) the evidence that is needed to substantiate
the claim, (2) the evidence, if any, to be obtained by VA,
and (3) the evidence, if any, to be provided by the claimant;
and (4) VA must make a request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim. As indicated above, the four content-of-notice
requirements have been met in this case.
Here, however, the duty to notify was not fully satisfied
pursuant to Vazquez-Flores, supra, prior to the initial
unfavorable decision on the claim by the RO. Under such
circumstances, VA's duty to notify may not be "satisfied by
various post-decisional communications from which a claimant
might have been able to infer what evidence the VA found
lacking in the claimant's presentation." Rather, such
notice errors may instead be cured by issuance of a fully
compliant notice, followed by readjudication of the claim.
See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006)
(where notice was not provided prior to the initial
adjudication, this timing problem can be cured by the Board
remanding for the issuance of a VCAA notice followed by
readjudication of the claim); see also Prickett v. Nicholson,
20 Vet. App. 370, 376 (2006) (the issuance of a fully
compliant VCAA notification followed by readjudication of the
claim, such as a statement of the case (SOC) or supplemental
statement of the case (SSOC), is sufficient to cure a timing
defect).
In this case, the VCAA duty to notify was satisfied
subsequent to the initial RO decision by way of a notice
letter sent in March 2006 that, together with the pre-
decisional notice provided to the veteran in November 2004,
fully addressed all four notice elements. Specifically, the
November 2004 notice letter notified the veteran of his and
VA's respective duties for obtaining evidence and asked him
to submit evidence and/or information in his possession to
the RO. The November 2004 letter also gave examples of the
types of medical and lay evidence that the veteran could
submit or ask VA to obtain in support of his claim. An
October 2005 SOC provided notice of the specific criteria
necessary to obtain a higher rating under the Diagnostic
Codes relevant to his claim. The March 2006 letter informed
the appellant of what evidence was required to substantiate
the claim, including the impact of his condition on
employment. That letter further notified the veteran that if
an increase in his service-connected disability were found, a
rating from 0 percent to as much as 100 percent could be
assigned based on the nature of the disability involved.
Although not all notices were sent before the initial
decision in this matter, the Board finds that this error was
not prejudicial to the appellant because the actions taken by
VA after providing the notice have essentially cured the
error in the timing. Not only has the appellant been
afforded a meaningful opportunity to participate effectively
in the processing of his claim and given ample time to
respond, but the RO also re-adjudicated the case by way of a
July 2006 SSOC after the notice was provided. The Board
further notes that although the Court has held in Mayfield,
supra, that post-decisional documents are inappropriate
vehicles with which to provide notice, the RO in this case
provided Vazquez-Flores compliant notice of specific rating
criteria that was followed by a re-adjudication of the
veteran's claim. The Board concludes that "during the
administrative appeal process [the veteran] was provided the
information necessary such that any defective predecisional
notice error was rendered non-prejudicial." Vazquez-Flores,
slip op. at 12. This included the October 2005 SOC. For
these reasons, it is not prejudicial to the veteran for the
Board to proceed to finally decide this appeal, as the timing
error did not affect the essential fairness of the
adjudication.
The Board thus finds that "the appellant [was] provided the
content-complying notice to which he [was] entitled."
Pelegrini, 18 Vet. App. at 122. In this regard, the more
detailed notice requirements set forth in 38 U.S.C.A. §§
7105(d) and 5103A have been met. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Specifically,
following the RO's issuance of the November 2004 notice
letter to the veteran, his claim for an increased rating for
status-post right knee anterior cruciate ligament
reconstruction was adjudicated in February 2005. After the
issuance of the October 2005 SOC and March 2006 notice
letter, the veteran's claim was re-adjudicated in July 2006.
Otherwise, nothing about the evidence or any response to the
RO's notification suggests that the case must be re-
adjudicated ab initio to satisfy the requirements of the
VCAA.
The Board also points out that there is no indication that
any additional action is needed to comply with the duty to
assist in connection with the veteran's claim. The veteran
has submitted written argument in support of his claim. He
was given a VA examination in December 2004 and was further
scheduled for VA examinations in May 2006 and August 2006 but
failed to report to either scheduled examination. The Board
acknowledges that in a March 2005 letter, the veteran
identified benefits awarded to him under the Missouri Second
Injury Fund (MSIF), a state workers' compensation program.
The Board notes, however, that the veteran stated that he
received the benefit award in 2001, more than two years
before he filed the claim for increased rating currently
under appeal. Because VA can look no earlier than one year
prior to the date of the claim in awarding an increased
rating for a previously service-connected disability, see 38
U.S.C.A. § 5110, Hart v. Mansfield, No. 05-2424 (U.S. Vet.
App. Nov. 19, 2007), the Board concludes that the records
associated with the MSIF award would not be probative of the
veteran's current condition for purposes of evaluating his
claim for increased rating. In so concluding, the Board
looks to Francisco v. Brown, 7 Vet. App. 55 (1994), which
holds that for increased rating claims, it is the veteran's
current disability that is of primary importance. Otherwise,
the veteran has not identified, and the record does not
indicate, existing records that need to be obtained pertinent
to the claim on appeal. Under these circumstances, the Board
finds that VA has complied with all duties to notify and
assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. §
3.159.
II. Analysis
Disability evaluations are determined by comparing a
veteran's present symptoms with criteria set forth in the
VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4. When a question arises as to which of two
ratings applies under a particular diagnostic code, the
higher evaluation is assigned if the disability more closely
approximates the criteria for the higher rating. 38 C.F.R. §
4.7. After careful consideration of the evidence, any
reasonable doubt remaining is resolved in favor of the
veteran. 38 C.F.R. § 4.3.
The veteran's entire history is reviewed when making
disability evaluations. See generally 38 C.F.R. § 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where
entitlement to compensation already has been established and
an increase in the disability rating is at issue, it is the
present level of disability that is of primary concern. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further,
evaluation of the medical evidence since the filing of the
claim for increased rating and consideration of the
appropriateness of a "staged rating" (assignment of
different ratings for distinct periods of time, based on the
facts found) is required. See Hart v. Mansfield, No. 05-2424
(U.S. Vet. App. Nov. 19, 2007).
The Board notes that, when evaluating musculoskeletal
disabilities rated on the basis of limitation of motion, VA
must consider granting a higher rating in cases in which
functional loss due to limited or excess movement, pain,
weakness, excess fatigability, or incoordination is
demonstrated. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown,
8 Vet. App. 202, 204-7 (1995); see also Johnson v. Brown,
9 Vet. App. 7 (1996). Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. In VA
Fast Letter 06-25 (November 29, 2006), VA's Compensation &
Pension Service noted that to properly evaluate any
functional loss due to pain, examiners, at the very least,
should undertake repetitive testing (to include at least
three repetitions) of the joint's range of motion, if
feasible. It was determined that such testing should yield
sufficient information on any functional loss due to an
orthopedic disability. Additionally, under VAOPGCPREC 9-2004
(September 17, 2004), separate ratings under Diagnostic Code
5260 and Diagnostic Code 5261 may be assigned for disability
based on limitation of motion of the same knee joint.
The veteran contends that he suffers from right knee pain,
along with additional symptoms of swelling, locking, and
popping, which he claims is pursuant to anterior cruciate
ligament reconstruction surgery he underwent while in
service. The RO has assigned the veteran a disability rating
of 0 percent for the knee under 38 C.F.R. § 4.71a, Diagnostic
Code 5257, which rates impairment of the knee due to
recurrent subluxation or lateral instability. The Board
notes that under Diagnostic Code 5257, a 10 percent rating is
warranted for recurrent subluxation or lateral instability
causing slight impairment, a 20 percent rating for moderate
impairment, and a 30 percent rating for severe impairment.
The Board will also consider, as the RO did, whether the
veteran's right knee disability would warrant a compensable
rating under diagnostic codes pertaining to limitation of
motion. The Board will evaluate the veteran's right knee
disability as it affects the flexion and extension of his
knee pursuant to VAOPGCPREC 9-2004, discussed above. Under
Diagnostic Code 5260, a 10 percent disability rating is
warranted if flexion is limited to 45 degrees, a 20 percent
disability rating if flexion is limited to 30 degrees, and a
30 percent disability rating if flexion is limited to 15
degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260.
Limitation of extension under Diagnostic Code 5261 is rated
10 percent disabling if extension is limited to 10 degrees,
20 percent disabling if extension is limited to 15 degrees,
30 percent disabling if extension is limited to 20 degrees,
40 percent disabling if extension is limited to 30 degrees,
and 50 percent disabling if extension is limited to 45
degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261.
Since the filing of the veteran's claim for an increased
rating, the Board does not find that the veteran's status-
post right knee anterior cruciate ligament reconstruction has
resulted in a level of impairment warranting a rating higher
than 0 percent.
The relevant evidence of record consists of a December VA
examination of the veteran's right knee and written
statements submitted by the veteran. The December 2004 VA
examination reflects the veteran's complaints of pain,
locking, and popping in his right knee, which he claims is a
result of surgery to reconstruct his right anterior cruciate
ligament. The examiner also noted that the veteran's pain
was occurring daily without flare-ups and increased after the
veteran walked a distance of about 2 miles or climbed stairs
or ladders. The veteran stated, however, that the pain
pursuant to prolonged walking did not limit his activity.
The veteran reported treating the pain with Tylenol and
denied using braces, canes, or crutches to help him walk.
The veteran further reported that his employment was not
limited at the time of the examination because he was a full-
time student but noted that the pain in his right knee had
previously affected the lifting and squatting required in his
former employment as an iron worker. The examiner further
stated that the veteran had had to limit his water skiing and
snowboarding activities due to the pain in his right knee,
although the activities were not ones in which he regularly
engaged.
Physical examination revealed that the veteran had a full
range of motion in the right knee from zero to 140 degrees
with no pain. His gait was normal with no limp or gait
dysfunction, and no edema or effusion was found in his right
knee. Two post-surgical scars were noted, but both were
well-healed, non-tender, and non-inflamed. The veteran's
McMurray and drawer tests were both negative, and no
instability was found when stressing the joint. Further,
repetitive motion testing revealed consistent findings of no
limitation or restrictions due to fatigue, incoordination, or
instability.
The examiner noted that radiological examination of the
veteran's right knee conducted in July 2004 showed status-
post anterior cruciate ligament reconstruction but found the
osseous structures were otherwise intact. The joint space
was found to be normally maintained and without joint
effusion. The examiner diagnosed the veteran with chronic
residuals of right anterior cruciate ligament reconstruction
and torn medial meniscus repair.
In addition to the medical evidence, the veteran has
submitted multiple statements in support of his claim
reflecting similar complaints of pain, locking, and
"clicking" in his right knee. In a March 2005 letter to
the RO, the veteran contended that he was limited in
activities such as heavy lifting due to the fear of a second
medial meniscus tear, which caused him to "perform at a
lower productive level." The veteran similarly complained
of pain, swelling, and locking in his right knee in a January
2006 letter.
Upon careful consideration of the evidence, the Board
concludes that a compensable rating for the veteran's status-
post right knee anterior cruciate ligament reconstruction is
not warranted under Diagnostic Code 5257. As noted above,
examination has revealed no medical evidence of subluxation
or instability in the knee, to include on repetitive motion
testing. In the absence of any clinical evidence to
demonstrate subluxation or instability in the knee, a
compensable rating under Diagnostic Code 5257 is not
warranted.
The VA examiner also considered the functional limitation
caused by the veteran's status-post right knee anterior
cruciate ligament reconstruction in opining that the pain the
veteran suffered on walking long distances caused no
functional impact. The examiner further found the veteran to
have a full range of motion without pain and no instability
on joint stress. The veteran also demonstrated no limitation
of motion due to fatigue, incoordination, or instability.
The Board acknowledges the veteran's subjective complaints of
pain in the knee but concludes that a higher rating under
limitation-of-motion codes is not warranted in the absence of
any medical evidence of such limitation. The Board notes
further that there is no medical evidence of any functional
loss due to pain, rendering a higher rating pursuant to
DeLuca inapposite in this case. In short, there is no
suggestion in the record that the veteran's functional losses
due to problems such as pain equate to limitation of motion
such that a higher rating could be assigned. 38 C.F.R. §§
4.40, 4.45, 4.59, 4.71, 4.71a; DeLuca, 8 Vet. App. at 204-7.
As already noted, the evidence does not support a compensable
rating for limitation of flexion under Diagnostic Code 5260
or for limitation of extension under Diagnostic Code 5261.
As noted above, the veteran had full range of motion without
pain at the December 2004 VA examination. As the VA
examination report revealed no limitation of flexion or
extension of the veteran's right knee sufficient to warrant a
compensable rating, no further rating is warranted under
Diagnostic Codes 5260 or 5261.
Otherwise, the Board does not find the clinical evidence
demonstrates ankylosis of the knee (Diagnostic Code 5256), or
malunion of the tibia or fibula with knee disability
(Diagnostic Code 5262). Likewise, while the veteran has
complained of symptoms of pain, locking, and popping of his
right knee, the clinical evidence does not demonstrate
dislocation of semilunar cartilage (Diagnostic Code 5258) or
removal of semilunar cartilage (Diagnostic Code 5259).
Further, the Board finds that the clinical evidence does not
demonstrate traumatically acquired genu recurvatum with
weakness and insecurity in weight-bearing (Diagnostic Code
5263).
The Board notes that when entitlement or continued
entitlement to a benefit cannot be established or confirmed
without a current VA examination or re-examination, and a
claimant, without good cause, fails to report for such
examination or re-examination, action shall be taken in
accordance with paragraphs (b) or (c) of 38 C.F.R. § 3.655
(2007), as appropriate. Examples of good cause include, but
are not limited to, the illness or hospitalization of the
claimant and death of an immediate family member. 38 C.F.R. §
3.655(a). When the examination was scheduled in conjunction
with an original compensation claim, the claim shall be rated
based on the evidence of record. Otherwise, when the
examination was scheduled in conjunction with any other
original claim, a reopened claim for a benefit that was
previously disallowed, or a claim for increase, the claim
shall be denied. 38 C.F.R. § 3.655(b).
As discussed above, there is no medical evidence associated
with the veteran's claims file to support an increased rating
for his right knee disability. Thus, another VA examination
could have provided information and evidence needed to
establish the veteran's entitlement to a benefit, which the
Board is otherwise unable to establish. Here, however, the
veteran failed to report for a scheduled May 2006 VA
examination and, upon the subsequent denial of his claim,
requested that a second examination be scheduled. The
veteran then failed to report for the rescheduled August 2006
examination and offered no explanation as to why he failed to
appear. In light of the above, the Board finds that the
veteran has failed to report to a scheduled VA examination
without showing good cause for his failure to report.
The Court has emphasized that "[t]he duty to assist in the
development and adjudication of a claim is not a one-way
street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); see
also Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). In
this instance, the duty to assist has been frustrated by the
veteran's failure to report for a VA examination needed to
produce evidence essential to his claim. If the veteran
believes he is entitled to an increased rating for his right
knee disability, he must at least fulfill his minimal
obligation of reporting for a VA medical examination when it
is scheduled.
As already noted, when entitlement to a claim other than an
original compensation claim cannot be established without a
VA examination and a claimant, without good cause, fails to
report for such an examination, the claim shall be denied.
38 C.F.R. §§ 3.655(a), (b). As the veteran has failed to
report to a VA examination without showing good cause, the
law is dispositive, and the Board has no alternative but to
deny the veteran's claim. See Kowalski, 19 Vet. App. at 176
(appellant's refusal to undergo a VA examination was
addressed appropriately by 38 C.F.R. § 3.655(b)).
ORDER
Entitlement to an increased rating for status-post right knee
anterior cruciate ligament reconstruction, currently
evaluated as 0 percent disabling, is denied.
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs